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Exhibit
1(b)
WAL-MART STORES,
INC.
DEBT
SECURITIES
UNDERWRITING
AGREEMENT
April 8, 2008
The Underwriters Listed on Schedule
I
to the applicable Pricing Agreement (as
defined herein)
Ladies and Gentlemen:
From time to time WAL-MART
STORES, INC., a Delaware corporation (the “Company”),
proposes to enter into one or more Pricing Agreements (each, a
“Pricing Agreement”) in the form of Annex I hereto,
with such additions and deletions as the parties thereto may
determine, and, subject to the terms and conditions stated herein
and therein, to issue and sell to the firms named in Schedule I to
the applicable Pricing Agreement (such firms constituting the
“Underwriters” with respect to such Pricing Agreement
and the securities specified therein) certain of its debt
securities (the “Securities”) specified in Schedule II
to such Pricing Agreement (with respect to such Pricing Agreement,
the “Designated Securities”).
The terms of any particular
issuance of Designated Securities and the rights of the holders of
such Designated Securities shall be as specified in the applicable
Pricing Agreement and in or pursuant to the indenture (the
“Indenture”) identified in such Pricing Agreement.
References in this Agreement to “the Pricing Agreement”
are to the applicable Pricing Agreement relating to the particular
issuance and sale of Designated Securities specified
therein.
1. Introduction .
Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Designated Securities, for whom
the firms designated as representatives of the Underwriters of such
Designated Securities in the Pricing Agreement will act as
representatives (the “Representatives”). The term
“Representatives” also refers to a single firm acting
as sole representative of the Underwriters and to Underwriters who
act without any firm being designated as their representative. This
Underwriting Agreement shall not be construed as an obligation of
the Company to sell any of the Securities or as an obligation of
any Underwriter to purchase any of the Securities. The obligation
of the Company to issue and sell any of the Securities shall be
evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. The Pricing Agreement shall specify,
with respect to the purchase and sale of the Designated Securities
pursuant thereto, (a) in Schedule I thereto (i) the names
of the Underwriters of the Designated Securities and (ii) the
principal amount of Designated Securities to be purchased by each
Underwriter at the Time of Delivery (as defined in Section 4
hereof) and (b) in Schedule II thereto (i) the title or
titles of the Designated Securities, (ii) the aggregate
principal amount or amounts of the Designated Securities,
(iii) the price or prices of the Designated Securities to the
public, (iv) the purchase price or prices of the Designated
Securities to the Underwriters, and, to the extent applicable, any
selling concession or concessions and reallowance concession or
concessions applicable to the Underwriters and dealers, as the case
may be, (v) specified funds, if not immediately available
funds, for payment
of the purchase price for the Designated
Securities, (vi) the title of the Indenture under which the
Designated Securities are being issued, (vii) the maturity or
maturities of the Designated Securities, (viii) the interest
rate or rates of the Designated Securities or the manner in which
the interest rate or rates are to be determined, (ix) the
interest payment dates of the Designated Securities, (x) the
record dates for the payment of interest on the Designated
Securities, (xi) the redemption provisions, if any, of the
Designated Securities, (xii) the sinking fund provisions, if
any, of the Designated Securities, (xiii) the Time of
Delivery, (xiv) the closing location with respect to the
closing of the sale of the Designated Securities pursuant to this
Agreement and the Pricing Agreement, (xv) the name or names
and address or addresses of the Representatives of the
Underwriters, (xvi) such other terms, conditions and other
provisions of the Designated Securities as are established in
accordance with the Indenture and (xvii) such other terms,
conditions and other provisions that supplement, amend or modify
this Agreement with respect to the Designated Securities or the
Indenture. The Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications or any other
rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters
under this Agreement and the Pricing Agreement shall be several and
not joint.
2. Representations,
Warranties and Agreements of the Company . The Company
represents and warrants to, and agrees with, each of the
Underwriters that:
(a) An “automatic shelf
registration statement” (as defined in Rule 405 under the
Securities Act of 1933, as amended (the “Securities
Act”)) in respect of the Securities (File
No. 333-130569) has been filed on Form S-3 with the Securities
and Exchange Commission (the “Commission”); such
registration statement and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration
statement but including all documents incorporated by reference in
each prospectus contained therein, delivered to the Representatives
for each of the other Underwriters, became effective under the
Securities Act upon filing with the Commission; no other document
with respect to such registration statement or any such document
incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission except for (i) any
prospectuses, preliminary prospectus supplements and prospectus
supplements previously filed in connection with the offer and sale
of Securities (other than the Designated Securities) pursuant to
such registration statement, (ii) any prospectus and
preliminary prospectus supplement relating to the Designated
Securities and (iii) any other documents identified in the
Pricing Agreement with respect to the Designated Securities; no
stop order suspending the effectiveness of such registration
statement or any post-effective amendment thereto has been issued,
no proceeding for that purpose has been initiated or threatened by
the Commission, and no notice of objection of the Commission to the
use of such registration statement or any post-effective amendment
thereto for the registration of the offer and sale of the
Securities by the Company pursuant to Rule 401(g)(2) under the
Securities Act has been received by the Company (the base
prospectus filed as part of such registration statement, in the
form in which it has most recently been filed with the Commission
prior to or on the date of the Pricing Agreement relating to the
Designated Securities, being hereinafter called the “Base
Prospectus”; any preliminary prospectus
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(including any preliminary
prospectus supplement) relating to the Designated Securities filed
with the Commission pursuant to Rule 424(b) under the Securities
Act, being hereinafter called a “Preliminary
Prospectus”; the various parts of such registration
statement, including all exhibits thereto (other than the Form T-1
of J.P. Morgan Trust Company, National Association) and any
prospectus supplement relating to the Designated Securities that is
filed with the Commission and deemed by Rule 430B under the
Securities Act to be part of such registration statement, each at
the time such part of such registration statement became effective,
being hereinafter called the “Registration Statement”;
the Base Prospectus, as amended or supplemented immediately prior
to the Applicable Time (as defined in Section 2(d) hereof),
including, without limitation, any Preliminary Prospectus relating
to the Designated Securities, being hereinafter called the
“Pricing Prospectus”; the form of the final prospectus
(including the final prospectus supplement) relating to the
Designated Securities filed with the Commission pursuant to Rule
424(b) under the Securities Act in accordance with
Section 5(a) hereof being hereinafter called the
“Prospectus”; any reference herein to the Base
Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act, as of the date
of such prospectus; any reference to any amendment or supplement to
the Base Prospectus, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such prospectus under
the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and incorporated by reference in such
prospectus; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report
on Form 10-K of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the applicable effective date of
the Registration Statement and that is incorporated by reference in
the Registration Statement; and any “issuer free writing
prospectus” (as defined in Rule 433(h) under the Securities
Act) relating to the Designated Securities being hereinafter
referred to as an “Issuer Free Writing
Prospectus”);
(b) The documents
incorporated by reference in the Pricing Prospectus and the
Prospectus or any amendment or supplement thereto, when they became
effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
provided, however , that this representation and warranty
shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter of Designated Securities through the
Representatives expressly for use therein;
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(c) The Registration
Statement and the Pricing Prospectus conform, and the Prospectus
and any further post-effective amendments to the Registration
Statement and the Prospectus will conform, as of the date on which
they become effective or are filed with the Commission, as the case
may be, in all material respects to the requirements of the
Securities Act and the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”), and the rules and regulations
of the Commission thereunder, and do not and will not, as of the
applicable effective dates as to the Registration Statement and any
post-effective amendments thereto, as of the applicable filing date
as to the Pricing Prospectus and as of the applicable filing date
and the Time of Delivery as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however , that this representation and warranty
shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter of Designated Securities through the
Representatives expressly for use therein;
(d) The Pricing Prospectus,
together with the pricing terms for the offering of the Designated
Securities and the terms and conditions of the Designated
Securities specified in the Final Term Sheet (as defined in
Section 5(a) hereof) prepared and filed pursuant to
Section 5(a) hereof, did not, as of the time and date
designated in the Pricing Agreement as the “Applicable
Time” (which the Company and the Representatives have agreed
is, as to the issue and sale of the Designated Securities,
immediately prior to the time when sales of the Designated
Securities to the public will be first confirmed orally or in
writing), contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however , that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities
through the Representatives expressly for use therein;
(e) The Company has been,
since the initial filing of the Registration Statement, and
continues to be a “well-known seasoned issuer” and has
not been, since such filing of the Registration Statement, and
continues not to be an “ineligible issuer” (as such
terms are defined in Rule 405 under the Securities Act); and the
Company is not the subject of a pending proceeding under
Section 8A of the Securities Act;
(f) The Company has not made
(other than, if applicable, as listed on Schedule II to the Pricing
Agreement), and will not make (other than the Final Term Sheet
prepared and filed pursuant to Section 5(a) hereof with
respect to the Designated Securities), any offer relating to the
Designated Securities that would constitute a “free writing
prospectus” (as defined in Rule 405 under the Securities
Act), without the prior consent of the Representatives; the Company
will comply with the requirements of Rule 433 under the Securities
Act with respect to any such free writing prospectus; any such free
writing prospectus will not, as of its issue date and through the
Time of Delivery for such
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Designated Securities,
include any information that conflicts with the information
contained in the Registration Statement, the Pricing Prospectus or
the Prospectus; and any such free writing prospectus, when taken
together with the information contained in the Registration
Statement, the Pricing Prospectus or the Prospectus, did not, when
issued or filed pursuant to Rule 433 under the Securities Act, and
does not contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(g) Neither the Company nor
any of the corporations, companies or other entities of which the
Company owns, directly or indirectly, a majority of the outstanding
equity interests or which the Company otherwise controls
(collectively, the “Subsidiaries”) has sustained, since
the date of the latest audited financial statements included or
incorporated by reference in the Pricing Prospectus and the
Prospectus, any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree that was or is material to the general
affairs, management, financial position, shareholders’
equity, results of operations or internal control over financial
reporting of the Company and its Subsidiaries considered as one
enterprise, otherwise than as set forth in the Pricing Prospectus;
and, since the respective dates as of which information is given in
the Pricing Prospectus and the Prospectus, there has not been any
material change in the capital stock or long-term debt of the
Company and its Subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
shareholders’ equity, results of operations or internal
control over financial reporting of the Company and its
Subsidiaries considered as one enterprise, otherwise than as set
forth in the Pricing Prospectus and the Prospectus;
(h) The Company and its
Subsidiaries have all ownership rights in all of the real property
and all of the personal property owned by them, in each case free
and clear of all liens, encumbrances and defects except such as are
described in the Pricing Prospectus and the Prospectus or such as
do not, individually or in the aggregate, materially and adversely
affect the general affairs, management, financial position,
shareholders’ equity, results of operations or internal
control over financial reporting of the Company and its
Subsidiaries considered as one enterprise and do not interfere with
the use made and proposed to be made of such property by the
Company and its Subsidiaries; and any real property and buildings
held under lease or equivalent agreement by the Company and its
Subsidiaries are held by them under valid, subsisting and
enforceable leases or equivalent agreements with such exceptions as
do not, individually or in the aggregate, materially and adversely
affect the general affairs, management, financial position,
shareholders’ equity, results of operations or internal
control over financial reporting of the Company and its
Subsidiaries considered as one enterprise;
(i) The Company and its
Subsidiaries own or possess, or can acquire on reasonable terms,
adequate trademarks, service marks and trade names necessary to
conduct the business now operated by them, and neither the Company
nor any of its Subsidiaries has received any notice of infringement
of or conflict with asserted rights of
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others with respect to any
trademarks, service marks or trade names that, individually or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the general affairs,
management, financial position, shareholders’ equity, results
of operations or internal control over financial reporting of the
Company and its Subsidiaries considered as one
enterprise;
(j) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Pricing Prospectus and the
Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability
by reason of the failure to be so qualified in any such
jurisdiction; and each Subsidiary of the Company has been duly
incorporated or organized and is validly existing in good standing
under the laws of its jurisdiction of incorporation or
organization;
(k) The Company has an
authorized capitalization as set forth in the Pricing Prospectus
and the Prospectus; all of the issued and outstanding shares of
capital stock of the Company have been duly and validly authorized
and issued and are fully paid and nonassessable; and all of the
issued shares of capital stock or equivalent equity interests of
each Subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and nonassessable and are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims, except as set forth in the
Pricing Prospectus and the Prospectus, and, in the case of Wal-Mart
de Mexico, S.A. de C.V., approximately 66% of the issued and
outstanding shares thereof as of the date hereof, or as do not,
individually or in the aggregate, materially and adversely affect
the general affairs, management, financial position,
shareholders’ equity, results of operations or internal
control over financial reporting of the Company and its
Subsidiaries considered as one enterprise;
(l) The Designated Securities
have been duly authorized, and, when such Designated Securities are
issued and delivered pursuant to this Agreement and the Pricing
Agreement, such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles, and entitled to the benefits provided
by the Indenture, which will be substantially in the form filed as
an exhibit to the Registration Statement; the Indenture has been
duly authorized and duly qualified under the Trust Indenture Act
and, at the Time of Delivery for the Designated Securities, the
Indenture will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and the
Indenture conforms, and the Designated Securities will conform, to
the descriptions thereof contained in the Pricing Prospectus (taken
together with the Final Term Sheet) and the Prospectus;
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(m) This Agreement has been
duly authorized, executed and delivered, and the Pricing Agreement
will be duly authorized, executed and delivered on the date
thereof, by the Company;
(n) The issue and sale of the
Designated Securities and the compliance by the Company with all of
the provisions of the Designated Securities, the Indenture, this
Agreement and the Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which (i) the Company is a party or by which the
Company is bound or to which any of the property or assets of the
Company is subject or (ii) any of the Company’s
Subsidiaries is a party or by which any of its Subsidiaries is
bound or to which any of the property or assets of any of its
Subsidiaries is subject, which conflict, breach, violation or
default, in the case of this clause (ii) (but not clause (i)),
would materially and adversely affect the general affairs,
management, financial position, shareholders’ equity, results
of operations or internal control over financial reporting of the
Company and its Subsidiaries considered as one enterprise, nor will
such action result in any violation of the provisions of the
Restated Certificate of Incorporation or Amended and Restated
Bylaws of the Company, each as amended to date, or any statute or
any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its
Subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue
and sale of the Designated Securities or the consummation by the
Company of the transactions contemplated by this Agreement or the
Pricing Agreement or the Indenture, except (i) such as have
been, or will have been prior to the Time of Delivery, obtained
under the Securities Act and the Trust Indenture Act,
(ii) such, if any, as have been, or will have been prior to
the Time of Delivery, obtained under securities laws and
regulations of the European Union or any foreign country to which
the Company is, has or will become subject due to actions taken, or
omitted, by the Company or by the Underwriters with the knowledge
of the Company and (iii) such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or “Blue Sky” laws in connection
with the purchase and distribution of the Designated Securities by
the Underwriters;
(o) Other than as set forth
in the Pricing Prospectus and the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
Subsidiaries is a party or of which any property of the Company or
any of its Subsidiaries is the subject that, if determined
adversely to the Company or any of its Subsidiaries, would,
individually or in the aggregate, have a material adverse effect on
the general affairs, management, financial position,
shareholders’ equity, results of operations or internal
control over financial reporting of the Company and its
Subsidiaries considered as one enterprise; and, to the best of the
Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or others; and
(p) Ernst & Young
LLP, which has audited and reported on certain financial statements
of the Company and its Subsidiaries and the Company’s
internal control over
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financial reporting and
management’s assessment thereof, is an independent registered
public accounting firm with respect to the Company and its
Subsidiaries as required by the Securities Act and the Exchange Act
and the rules and regulations of the Commission and the Public
Company Accounting Oversight Board.
For purposes of this Section 2 as
well as for Section 8 hereof, references to “the Pricing
Prospectus and the Prospectus” are to each of such
prospectuses as a separate or stand-alone document (and not the two
such prospectuses taken together), so that representations,
warranties, agreements, conditions and legal opinions will be made,
given or measured independently in respect of each of the Pricing
Prospectus and the Prospectus.
3. Offer and Sale of
Designated Securities . Upon the execution of the Pricing
Agreement applicable to the Designated Securities and authorization
by the Representatives of the release of such Designated
Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set
forth in the Prospectus.
4. Payment and Settlement
for Designated Securities . Designated Securities to be
purchased by each Underwriter pursuant to the Pricing Agreement, in
definitive form to the extent practicable, and in such authorized
denominations and registered in such name or names as the
Representatives may request upon at least twenty-four hours’
prior notice to the Company, shall be delivered by or on behalf of
the Company to the Representatives, against payment by such
Underwriter or on its behalf of the purchase price therefor by one
or more wire transfers in immediately available funds (or such
other funds as specified in the Pricing Agreement), payable to the
order of the Company, all at the place and time and date specified
in the Pricing Agreement or at such other place and time and date
as the Representatives and the Company may agree upon in writing,
such time and date being herein called the “Time of
Delivery” for such Designated Securities.
5. Further Agreements of
the Company . The Company agrees with each of the Underwriters
of any Designated Securities:
(a) (i) To prepare the
Prospectus in relation to the Designated Securities in a form
approved by the Representatives and to file the Prospectus pursuant
to Rule 424(b) under the Securities Act not later than the
Commission’s close of business on the second business day
following the execution and delivery of the Pricing Agreement or,
if applicable, such earlier time as may be required by Rule 424(b)
under the Securities Act; (ii) to make no further amendment or
any supplement to the Registration Statement or the Prospectus
after the date of the Pricing Agreement relating to the Designated
Securities and prior to the Time of Delivery for the Designated
Securities that shall be disapproved by the Representatives
promptly after reasonable notice thereof ( provided, however
, this clause (ii) shall, in the case of any periodic or
current report that the Company is required to file pursuant to
Section 13(a), 13(c) or Section 15(d) under the Exchange
Act prior to or at the Time of Delivery, apply to the extent
practicable in the light of the circumstances); (iii) to
advise the Representatives promptly of any such amendment or
supplement after such Time of Delivery and furnish the
Representatives with copies thereof; (iv) to prepare a final
term sheet, containing solely a description of the Designated
Securities, substantially in the form of Annex II hereto and
approved by the
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Representatives (the
“Final Term Sheet”) and to file the Final Term Sheet
pursuant to Rule 433(d) under the Securities Act within the time
period prescribed by such Rule; (v) to file within the time
period prescribed by Rule 433(d) under the Securities Act, all
other material required to be filed by the Company with the
Commission pursuant to Rule 433(d) under the Securities Act;
(vi) to file by the filing deadlines prescribed by the
Exchange Act and the rules thereunder, all reports and any
definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of
such Designated Securities, and during such period to advise the
Representatives promptly after it files any post-effective
amendment to the Registration Statement of the time when such
post-effective amendment to the Registration Statement has been
filed and becomes effective or promptly after it files any
amendment or supplement to the Prospectus or any amended
Prospectus, of the time when it files such amendment or supplement
to the Prospectus or any amended Prospectus with the Commission, of
the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to the
Designated Securities, of the suspension of the qualification of
the Designated Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, of the receipt from the Commission of any notice of
objection to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under
the Securities Act for the registration of the offer and sale of
the Designated Securities, or of any request by the Commission for
the amending or supplementing of the Registration Statement or
Prospectus or for additional information relating to the
Registration Statement, the Prospectus or any amendment or
supplement thereto or the offer and sale of the Designated
Securities; and (vii) in the event of the issuance of any such
stop order or any such order preventing or suspending the use of
any prospectus relating to the Designated Securities or suspending
any such qualification, or of any such notice of objection, to use
promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to
time to take such action as the Representatives may reasonably
request to qualify the Designated Securities for offering and sale
under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Designated Securities, provided that in
connection therewith the Company shall not be required to qualify
as a foreign corporation or to file a general consent to service of
process in any jurisdiction (it being recognized that, solely for
purposes of this Section 5(b), the Company shall not be
required by the Representatives, without its consent, to subject
itself to any securities laws or regulations of the European Union,
or of any foreign country, to which the Company was not subject
immediately prior to the offering and sale of such Designated
Securities);
(c) To furnish the
Underwriters with copies of the Prospectus in such quantities as
the Representatives may from time to time reasonably request, and,
if the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Securities
9
Act) is required at any time
in connection with the offering or sale of the Designated
Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such Prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) under the Securities Act) is delivered, not
misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Securities Act, the
Exchange Act or the Trust Indenture Act, to notify the
Representatives and, upon their request, to file such document and
to prepare and furnish without charge to each Underwriter and to
any dealer in securities as many copies as the Representatives may
from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus that will correct such statement or
omission or effect such compliance;
(d) To make generally
available to its security holders as soon as practicable, but in
any event not later than eighteen months after the effective date
of the Registration Statement (as defined in Rule 158(c) under the
Securities Act), an earnings statement of the Company and its
Subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (including, at the option
of the Company, Rule 158 under the Securities Act);
(e) During the period
beginning from the date of the Pricing Agreement and continuing to
and including the earlier of (i) the termination of trading
restrictions for the Designated Securities, as notified to the
Company by the Representatives and (ii) the Time of Delivery
for the Designated Securities, not to offer, sell, contract to sell
or otherwise dispose of any debt securities of the Company that
mature more than one year after such Time of Delivery and that are
substantially similar to such Designated Securities, without the
prior written consent of the Representatives;
(f) To furnish to the holders
of the Designated Securities, upon such holders’ request, as
soon as practicable after the end of each fiscal year, an annual
report (including a balance sheet and statements of income,
shareholders’ equity and cash flows of the Company and its
consolidated Subsidiaries certified by an independent registered
public accounting firm) and, as soon as practicable after the end
of each of the first three quarters of each fiscal year (beginning
with the fiscal quarter ending after the effective date of the
Registration Statement), consolidated summary financial information
of the Company and its Subsidiaries for such quarter in reasonable
detail;
(g) During a period of five
years from the effective date of the Registration Statement, to
furnish to the Representatives copies of all periodic or current
reports or other communications (financial or other) of the Company
furnished to its shareholders, and deliver to the Representatives
(i) as soon as they are available, copies of any periodic or
current reports and financial statements furnished to or filed with
the Commission or any national securities exchange on which the
Designated Securities or any class of securities of the Company is
listed ( provided, however, that the Company shall
be
10
deemed to have furnished and
delivered such documents if and when such documents are available
through the Commission’s EDGAR System on the
Commission’s website); and (ii) such additional
information concerning the business and financial condition of the
Company as the Representatives may from time to time reasonably
request (such
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